| People v Tate |
| 2011 NY Slip Op 04713 [84 AD3d 1416] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William C. Tate, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered June 25, 2010, convicting him of murder in the second degree and aggravated sexualabuse in the second degree, upon his plea of guilty, and sentencing him to consecutive terms of25 years to life imprisonment on the conviction of murder in the second degree and five yearsimprisonment with a period of 20 years of postrelease supervision on the conviction ofaggravated sexual abuse in the second degree.
Ordered that the judgment is modified, on the law, by vacting the period of 20 years ofpostrelease supervision imposed on the conviction of aggravated sexual abuse in the seconddegree; as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Dutchess County, for the imposition of a new term of postrelease supervision.
Contrary to the defendant's contention, the imposition of consecutive sentences in this casewas not illegal (see Penal Law § 70.25 [2]). The People met their burden ofestablishing that the act constituting the offense of aggravated sexual abuse in the second degreewas not a material element of the offense of murder in the second degree, and constituted aseparate and distinct act (see Penal Law § 125.25 [4]; § 130.67 [1] [c];People v Taveras, 12 NY3d 21, 25 [2009]; People v Laureano, 87 NY2d 640, 643[1996]; People v Bullip, 59 AD3d 561 [2009]; People v Billinger, 204 AD2d 562[1994]; People v Sceravino, 193 AD2d 824, 826 [1993]).
The defendant pleaded guilty with the understanding that he would receive the sentence ofimprisonment that was thereafter actually imposed, and has no basis now to complain that hissentence of imprisonment was excessive (see People v Bunn, 79 AD3d 1143 [2010],lv denied 16 NY3d 829 [2011]; People v Kazepis, 101 AD2d 816 [1984]).However, as the People correctly concede, the term of postrelease supervision imposed exceedsthe statutorily authorized maximum (see Penal Law § 70.45 [2-a] [b]). Thus, theillegal term of postrelease supervision must be vacated, and the matter remitted to the CountyCourt, Dutchess County, for the imposition of a new term of postrelease supervision. Skelos,J.P., Dickerson, Hall, Austin and Miller, JJ., concur.